• This analysis looks less at constitutional legalities. Instead it shares points made in SC order on 6A and provide a perspective. It also makes a plea to SC to avoid getting involved in the nitty grity of administrative decisions.

Alok Prasanna, co-founder of Vidhi Centre for Legal Policy, wrote on the Supreme Court (SC) order on Sec 6A of the Citizenship Act 1955 wrote, “Even while upholding Section 6A of the Citizenship Act 1955, the Court seems to want to get itself involved in the minutiae of identifying illegal immigrants and border fencing. We have been down this path before. The court involved itself deeply in the National Register of Citizens exercise in Assam, only to create a new set of problems.” Indian Express

This prompted me to download the SC order and see finer points as I had done in Haldwani Encroachments Intent of this piece is to look less at constitutional legalities but more to share points made and provide a perspective.

Utkarsh Anand wrote in the Hindustan Times, “Sec 6A was enacted as part of the 1985 Assam Accord marks a turning point in debate over citizenship and demographic change. SC upheld Parliament’s authority to legislate on this matter, stating that the cut off of 31/3/1971 for conferring citizenship on illegal migrants from Bangladesh was reasonable. 6A allowed people who entered Assam between 1/1/1966 and 25/3/1971, upon being detected as foreigners to register themselves as Indian citizens. Prior to 25/3/1971 migrants were seen as refugees resulting from Partition of India, said the CJI.” Why CJI statement is partially false, read later. The order spoke about Principles of Equality under Article 14. Equality before law is a myth in India. Read later why.

Utkarsh also wrote, “By enforcing the authority of Parliament to legislate on citizenship matters, the ruling has reinforced the Centre’s argument that the CAA is a legitimate exercise of legislative powers. The 6A ruling underlined Parliament’s ability to set diverse conditions for citizenship in specific states is constitutionally sound.”

Quote 2024 order, “Immigrants who entered State of Assam on or after 25.03.1971 are illegal immigrants. The ruling said the implementation of immigration & citizenship legislations “cannot be left to the mere wish and discretion of the authorities, necessitating constant monitoring by this Court.” Indian Express

If only SC focused on clearing backlog of cases instead of assuming such monitoring roles. 

Issue-Does Parliament have power to introduce Section 6A legislation that was part of the 1985 Assam Accord?

CJI Chandrachud, Justices Surya Kant, M M Sundresh, and Manoj Misra upheld the constitutional validity of Sec 6A whilst Justice J B Pardiwala dissented. SC Order is 407 pages. First is order by CJI Chandrachud 127 paras ends at pg 94 (read this). Second is order of Justice Suryakant J also who wrote on behalf of 2 other Judges, 394 paras ends at pg 279. Third order of Justice Pardiwala has 220 paras, ends at pg 407.

Why should different judges spend time on writing different orders when only one order is followed? If one order is written, this would save judicial time.

Time Period - Assam Accord signed in 1985, Petition filed by NGOs in 2012, a two-Judge SC Bench passed an order dated 17/12/2014 referring 13 issues to Constitution Bench, final SC order 17/10/2024. If only the SC could move faster on matters of national importance. It took five years to order removal encroachment of an illegal mosque constructed on Allahabad HC premises

Would this SC Order apply only to Bangladeshi infiltration into Assam or all of India? It seems only Assam. However, the biggest infiltration from Bangladesh is today through West Bengal.

Historical reasons for migration from East Pakistan or Bangladesh into Assam.

The then Assam government formed in 1921, with the support of the Assam Mohammeden Association, supported migration from East Bengal (Bangladesh) in the name of ‘grow more campaign’. Lord Wavell described the settlements as: “Grow more Muslims, rather than grow more food.” Edavelth Nalaamveetil Rammohan, Frontier in Flames, page 19.

Former Governor of Assam Lt Gen S K Sinha wrote to the President of India in his 1998 Report on Illegal Infiltration into Assam and said, “Mr. Abdul Momin, former Foreign Secretary and Bangladesh's first Ambassador to China wrote in 1991, "The runaway population growth in Bangladesh resulting in suffocating density of population in a territorially small country, presents a nightmarish picture. If we in Bangladesh ingratiate ourselves with the hill tribes within our borders, our bulging population might find a welcome in adjacent land inhabited by kindred peoples”. Source Lt Gen S K Sinha 1998 Report on illegal migration into Assam.

Shekhar Gupta wrote for India Today in 1986, “Broadly the Congress(I) was unable to decide what its constituency was, the traditional Ali-Coolie-Bengah (a term coined by former Congress president D.K. Barooah for the party's stronghold among the Muslims, tea labourers and Bengali immigrants) or the ethnic Assamese.” Needless to say Ali meant Bangladeshi Muslims.  

Read   Why do Bengali Muslims migrate to Assam  

To download SC order click on PDF (copyright SC)

Now salient points made in the SC Order, given SC order page number 

1. Do read the concept of Permit on Page 20, para 25. “On 26/7/1949 the Governor General ‘promulgated the Influx from West Pakistan (Control) Ordinance 1948. Ordinance stipulated that persons can enter India from any place in West Pakistan only if they are in possession of permits. It did not apply to migrants from East Pakistan (that is, present day Bangladesh).”

“On 10/11/1948 a Pakistan Control Ordinance was promulgated. It introduced a permit system for persons entering India from East Pakistan also (that is, present day Bangladesh).’ However, ‘the Central Government did not frame any Rules to implement the permit system for the movement from East Pakistan to India.” Pg 22, para 26

“Mr. Ayyangar stated that the Central Government examined the suggestion to introduce a permit system between East Pakistan and India but decided against it because it would restrict the freedom of movement of a large number of persons who, in their ordinary avocations, had to pass between East Pakistan and either Assam or West Bengal.” Pg 23, para 27 Thus, the permit system was not implemented for those who came from East Pakistan.

The SC order missed referring to the Migration Certificate introduced in East Pakistan for Hindus migrating to India.

Historian Tapan Roy Chowdhury wrote in The world in our time “There was a system of Migration Certificate from East Pakistan, which witnessed exclusive and sustained movement post 1949. As per rules, a Hindu migrating from EP had to give undertakings to EP that he had no outstanding to the nation, was carrying no wealth and other details. Upon landing in India, he should report to the local authorities. The Nehru-Liaqat pact defined the amounts of jewels etc a migrant could carry. Since the general mood in EP was to grab Hindu wealth, issue of migration certificate by EP was a strip-down experience. Many or most Hindus took the unofficial routes to India.”

83 year old Tapan Ganguli wrote, “When partition was announced, Hindus and Sikhs from West Punjab crossed over to East Punjab including Delhi. In Bengal, the landowners and gentry of EB were overwhelmingly Hindu but were given assurances by Nehru that they would be looked after post-independence. In 1950, a Nehru Liaqat Ali pact was signed by both heads of state that the respective minorities in India and Pakistan would be protected by the respective governments.” But Pakistan (East or West) never kept its promise.

2. Page 34 of SC order, para 44. See bottom of page for page numbers.  

Thus, while deciding the Article 14 challenge the Court must decide on three issues, one of which is “Whether Section 6A is under inclusive because it grants citizenship only to migrants from Bangladesh to Assam.” Read about Art 14 later.

3. Page 40 para 49.

“An illegal migrant was defined to mean a foreigner who entered India (a) without a valid passport or other travel documents prescribed by law; or (b) with a valid passport and travel documents but has overstayed. The 2003 Amendment Act also amended Sections 5 and 6 of the Act to exclude illegal immigrants from acquiring citizenship by naturalisation and registration.”

“Sections 5 and 6 of the Citizenship Act, after the amendments introduced by the 2003 Amendment Act now expressly bar illegal migrants from acquiring citizenship by registration or naturalisation.” Para 49. 

4. Page 42 para 52.

“Thus, until 1957, the Foreigners Act which provided the Central Government with the power to remove a migrant without legal documentation from the soil of India did not apply to migrants from West and East Pakistan.”

“However, even before the immigrants from West and East Pakistan were considered ‘foreigners’ for the purpose of the Foreigners Act, Parliament enacted the Immigrants (Expulsion from Assam) Act 1950. The Statement of Objects and Reasons states that the Immigrants (Expulsion from Assam) Act 1950 was enacted to deal with the large scale immigration of migrants from East Bengal to Assam. It is crucial to note that this Act only applied to immigrants in Assam and not the rest of India.”

Remember that Pakistan wanted Assam to be part of it so does modern day Bangladesh. The state has huge land area, which will allow large Bangladeshi population to settle down as being seen.

SC order noted in para 56. “However, the huge influx of migrants from East Pakistan to Assam was not receding. On 25 December 1983, the Illegal Migrants (Determination by Tribunals) Act 1983 came into force.” It was applicable to all of India. 

5.  Para 58 page 46. “Before I proceed to deal with the issues, it is necessary that I summarise the scope of judicial review under Article 14.” 

Article 14 of the Indian Constitution reads, “The State shall not deny any person equality before law or the equal protection of the laws within the territory of India.” The source of this Article is in the American and Irish Constitutions and perhaps the Government of India 1935.  Article 14 is a myth. Here is why. 

a. Proponents of Article 14 - Why are Hindus denied equal human rights?

Here are two of the many examples. The government manages and control their places of worship i.e. temples. Two, responsibility for education of poor children for free under the Right to Education Act is placed on Hindu schools only. Should not all Indian Women like Hindu women have Equal Inheritance Rights? Read  Laws that government must change to give Hindus equal human rights And Tax Laws should be the same for all citizens

b. J Sai Deepak spoke on Article 14 – Right to Equality. Video of 11 minutes Excerpts from talk, “Whether principles of equality under Article 14 are applicable in the context of allowing people access or entry into Bharat. Principles of equality under this Article when sought to be applied in the context of the right of foreigners to enter India takes away the sovereign power of the Government of India to take a decision and apply its own security considerations, as part of this process. Then, the GOI reserves the prerogative depending on its own considerations. Here security plays an important consideration. Going by the pure language of the article one should not have reservations, personal laws by religion, schemes for certain communities.

When you speak of equality it has to be application of a law to a specific context. In different contexts different outcomes emanate. Equality in the eyes of the law is for equals, not all refugees not all people coming from different backgrounds are to be grouped under the same class.” For another video 13.5 minutes by Sai Deepak

Read   The use of Article 14 in CAA is a flawed argument 

When Bharat, the only country for Indics worldwide, is facing an unprecedented demographic invasion, Courts should realize the historical reality and avoid using Western constitutional concepts.

But Judges are not students of history!

6. Page 62 para 82

“The IMDT Act and Rules were held to be unconstitutional on the following grounds:” Below are two grounds.  

a. “In particular, Section 9 of the Foreigners Act places the burden of proof of being an Indian citizen on the person concerned. The provisions of the IMDT Act and Rules are silent on the onus of proof.”

b. “In Assam, where the IMDT Act is applicable, only 10,015 persons were declared illegal migrants until 30 April 2000 though 3,10,759 inquiries were initiated. However, in West Bengal where the Foreigners Act is applicable, 4,89,046 persons were deported between 1983 and November 1998.”

7. Page 69 Para 92

“The people of Assam (the Assamese) are a section of citizens who have a distinct language, script of culture which they are entitled to conserve in terms of Article 29(1).” I thought this applied to minorities only.

8. Pg 77, para 105

“The Central Government prepared the National Register of Citizens in Assam in 1951 which consisted of information on all the citizens in Assam.” Wonder why so much noise about NRC today. 

9. Page 80, para 107.

“According to the Schedule to the Citizenship Rules 2003, the procedure for the preparation of NRC in Assam is as follows:” Refer to SC order PDF to read. 

10. Conclusion is page 91, para 125.

Courts must realize that India was partitioned on the basis of religion. What India is witnessing now is an unprecedented flow of Bangladeshis into India. Their presence is everywhere. This problem requires more executive than court driven solutions. Unless we accept this reality, a solution shall evade us.

Today the biggest infiltration is happening through West Bengal. People in Assam have woken up to the dangers of infiltration hence the 1980s Assam Agitation.

Instead of trying to get involved in executive matters like border fencing and identifying illegal immigrants, wish the SC focused on administering law and clearing huge backlog of cases.

Also read

1. Reading Higher Judiciary – Pay Right

2. Thank You Supreme Court

3. Ideas to have more Women in Higher Judiciary

4. Issues for Higher Judiciary that will not go away

5. Vacation Policy of SC Judges needs to shed its colonial legacy

6. Who drafted and how Indian is the Indian Constitution

7. Being Independent does not mean you are Accountable only to yourself

8. Why do Bengali Muslims migrate to Assam